EB5 Investors Magazine (English Edition) Volume 5, Issue 1 - Page 76

I
n recent years, a growing number of EB-5 investors
residing in the United States have begun to show great
interest in EB5 direct investment projects. The hope is
that by directly managing their own business enterprises,
they will not only be able to protect their investments
by exercising direct control, but also lay the economic
groundwork for their future lives as U.S. immigrants.
EB-5 direct investment cases differ from EB-5 regional
center cases and the biggest difference is that during the
application process, EB-5 direct investors must create
actual direct job positions, namely, form W-2 employees
for whom the employer files income tax returns. This
is unlike regional center investments, which permit the
counting of any indirect job position created based on
econometric modeling.
The smooth progress of the EB-5 application depends on
the EB-5 investor and if the creating direct job positions
meet the legal criteria. The requirement is ten positions
that need to be at least 35 hours of work weekly and that
the positions are filled by qualifying employees.
Exactly what kinds of employees are EB-5 direct investment
qualifying employees? Are they limited to green card
holders and citizens? In recruiting these kinds of workers,
what kinds of issues should the EB5 investor pay close
attention?
IN EB-5 DIRECT INVESTMENT CASES,
WHO COUNTS AS QUALIFYING
EMPLOYEES?
Currently, the many materials available include the
United States Citizenship and Immigration Services own
presentation manuscripts, all of which only list citizens
or permanent residents. However, according to 8 CFR
§204.6(e), qualifying employee actually encompasses
far more than citizens and permanent residents. The
specific provision is as follows:
“Qualifying employee means a United States citizen, a
lawfully admitted permanent resident, or other immigrant
lawfully authorized to be employed in the United states
including, but not limited to, a conditional resident, a
temporary resident, an asylee, a refugee, or an alien
remaining in the United States under suspension of
deportation. This definition does not include the alien
entrepreneur, the alien entrepreneur’s spouse, sons, or
daughters, or any nonimmigrant alien.”
From the statute, we see that non-immigrants holding
short-term visas certainly cannot be counted as EB-5
direct investment qualifying employees. This includes
workers who must apply for work visas (H, L, O, etc.) and
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EB5 INVESTORS M AGAZINE